Complaint July 11, 2024 (2024)

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Ruling

1167 MISSION STREET, LLC, A CALIFORNIA LIMITED VS. IMAGE INTERIORS, LLC, A CALIFORNIA LIMITED ET AL

Jul 24, 2024 |CGC23609091

Real Property/Housing Court Law and Motion Calendar for July 24, 2024 line 3. PLAINTIFF 1167 MISSION STREET, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY NOTICE OF MOTION AND MOTION FOR JUDGMENT ON THE PLEADINGS AND TO STRIKE IMAGE INTERIORS LLC'S ANSWER DUE TO SUSPENDED CORPORATE STATUS is OFF CALENDAR, moot. See July 10, 2023 Lee Declaration. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

Ruling

Guaranty Holdings of California Inc. vs Resort at Lake Tulloch LLC

Jul 26, 2024 |20CV44713

20CV44713 DEFENDANTS’ DEMURRER AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINTThis case involves a landlord-tenant dispute over the condition of the residence afterbeing surrendered back to the homeowner. At the core of the dispute is Defendants’removal of floating boat dock and other items on the property owned by PlaintiffGuaranty Holdings of California, Inc (“GHOC”). The First Amended Complaint (FAC)was filed on May 27, 2023. As against all Defendants, including Bernadette Cattaneo(“Cattaneo”) and David Robinson (“Robinson”) (collectively “Moving Defendants”) theFAC alleges causes of action for conversion and receipt of stolen property. As againstDefendant Christopher Dufresne (“Dufresne”) and the Estate of Sylvia Brown (“Estate”)the FAC also alleges a cause of action for fraud. As against Cattaneo, the FAC alsoalleges a cause of action for private nuisance. Now before the Court are the MovingDefendants’ Demurrer and Motion to Strike Portions of the First Amended Complaint.The Court denies the Request for Judicial Notice as to: (A) the obituary as irrelevant,and grants as to (B) and (C) as these are government agency documents, though theCourt did not find them relevant to its analysis and decision.I. Factual BackgroundIn or about December 2018, GHOC purchased the residence known as 108 SanguinettiCourt, Copperopolis, California (the “Residence”) at a Trustee’s Sale. At the time GHOCpurchased the Residence, Dufresne occupied the Residence and owed approximately$400,000.Following GHOC’s purchase of the Residence, counsel for GHOC and counsel forDufresne and the Estate, entered into negotiations regarding when Dufresne wouldvacate the Residence. In January 2019, GHOC’s former attorney received a letter datedJanuary 9, 2019, signed by Dufresne (hereinafter “the Letter”) that read, in pertinentpart: This letter is meant to serve as my written assurance to you that I Christopher Michael Dufresne have no intentions of stripping or removing the dock, lift, fixtures or anything else from property address: 108 Sanguinetti Ct. Copperopolis, CA 95228.”GHOC alleges that in reliance on the Letter, it did not take any additionalprecautions prior to May 8, 2019, to secure the fixtures affixed to the Residenceas real and not personal property.Calaveras County Superior Court ordered Dufresne and the Estate to vacate theresidence on or before May 9, 2019. Plaintiff alleges that Defendants Dufresne,Robinson, Cattaneo, Holman, and others “acted in concert” to remove the followingfixtures that were affixed to the real property of the Residence: 1) A marine dockattached to the Residence; 2) Three (3) ceiling fans; 3) Lights; 4) Several Vikingrefrigerators; 5) Wine cooler; and 6) Kitchen Aid refrigerator (collectively, “theProperty”). At the core of the dispute is Defendants’ removal of the floating boat dock(“Dock”).Plaintiff alleges that the Property is worth approximately $205,000.00.According to GHOC, it later learned that Dock was taken by Moving Defendants and theother defendants to the Resort, where it remained for several years. GHOC believesthat the Dock has since been damaged beyond repair and is no longer at the Resort.Thereafter, GHOC incurred costs in excess of $165,000 to replace Dock at theResidence. However, following installation of the new dock, Cattaneo and others withcontrol of the Residence began intentionally blocking GHOC’s access to the new dock.II. Standard for Demurrer“A demurrer tests the sufficiency of a complaint and admits all facts properly pleaded.”(Setliff v. E.I.Du Pont de Nemours & Co.(1995) 32 Cal. App. 4th 1525, 1533.) The courtassumes the truth of the allegations asserted but does not assume the truth of“contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State ofCalifornia (2008) 161 Cal. App. 4th 242, 247.) The court can further look at those factsthat “reasonably can be inferred from those expressly pleaded, and matters of whichjudicial notice has been taken.” (Fremont Indemnity Co. v. Fremont General Corp.(2007), 148 Cal.App.4th 97, 111.) If a complaint does not sufficiently state a cause ofaction, “but there is a reasonable probability that a defect can be cured by amendment,leave to amend must be granted.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998)19 Cal. 4th 26, 38.)Moving Defendants asserts that the FAC is subject to demurrer pursuant to Civ. Code430.10 (e) (failure to state a claim) and 430.10(f) (uncertainty). “‘[D]emurrers foruncertainty are disfavored, and are granted only if the pleading is so incomprehensiblethat a defendant cannot reasonably respond.’” (Mahan v. Charles W. Chan Ins. Agency,Inc. (2017) 14 Cal.App.5th 842, 848 fn.3 [citing Lickiss v. Financial Industry RegulatoryAuthority (2012) 208 Cal.App.4th 1125, 1135].)III. Analysis A. Conversion“Conversion is the wrongful exercise of dominion over the property of another. Theelements of a conversion claim are: (1) the plaintiff’s ownership or right to possession ofthe property; (2) the defendant’s conversion by a wrongful act or disposition of propertyrights; and (3) damages....” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240, internalcitation and quotations omitted.) In order to prove a cause of action for conversion, “theplaintiff must show the defendant acted intentionally to wrongfully dispose of theproperty of another.” (Duke v. Sup. Ct. (2017) 18 Cal.App.5th 490, 508, citationomitted.)The FAC alleges that GHOC purchased the Residence and that there was anunderstanding between GHOC and Dufresne that all fixtures would remain on theResidence, including the Dock. (FAC ¶ ¶ 12, 15.) GHOC next alleges that Cattaneoand Robinson acted in concert with other defendants to wrongfully remove the Property.(FAC ¶ 18.) Finally, GHOC alleges that as a result of the wrongful removal of theProperty, it was damaged in excess of $200,000.00.1GHOC has stated a cause of action for conversion. Accordingly, the demurrer isoverruled as to the first cause of action. B. Receipt of Stolen Property (Penal Code §§ 496(A) and (C)Penal Code section 496(a) provides: Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.1 Defendants male a lengthy argument about whether the floating dock is readily moveable andwhether under the factual circ*mstances the dock is personal or real property. In support,Defendants cite to a 1983 letter from the California Board of Equalization regarding floatingdocks in a completely different lake in a different part of California. While the Court takesjudicial notice of the letter as requested, the letter is irrelevant to the issues on demurrer.Undermining Defendants argument is the fact that within that letter it specifically states thatwhether something is a fixture or not is “one of fact to be determined from the evidence in aparticular case.” Defendants reliance on statements made in depositions are also improper at thedemurrer stage.Penal Code section 496(c) provides: Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.Moving Defendants argue that the FAC fails to state a claim for this cause of actionbecause Penal Code section 496(a) also states: “no person may be convicted bothpursuant to this section and of the theft of the same property.” They argue that becausethe FAC alleges that they committed the wrongfully taking of the Property, they cannotalso be liable for receiving those stolen goods.Moving Defendants argument is misplaced. First, the language in Section 496(a) statesthat person cannot be convicted of both the crime of theft and of receiving stolenproperty. (See, People v. Jaramillo (1976), 16 Cal.3d 752, 757 [stating it is a“fundamental principal that one may not be convicted of stealing and of receiving thesame property”].) It does not state that a person cannot be civilly liable under subsection(c) for both taking and receiving stolen property. Further, there is legal authority to thecontrary. (See Siry Investment L.P. v. Fakhondehpour (2022) 13 Cal. 5th 333 [limitedpartner could bring a civil cause of action under section 496(c) against general partnerand others even where the defendants had both undertaken the theft and received thestolen property].)Moving Defendants also argue that this cause of action is barred by the three yearstatute of limitations set forth in Penal Code section 801. They assert that the FACalleges the theft occurred on May 8, 2019 but the FAC was not filed until May 17, 2023.This argument is also without merit. Under the relation-back doctrine, an amendedcomplaint will relate back to the date the original complaint was filed if the amendedcomplaint: “(1) rests on the same general set of facts; (2) involves the same injury; and(3) refers to the same instrumentality as the original complaint.” (Norgart v. Upjohn Co.(1999), 21 Cal.4th 383, 409.) An amended complaint “relates back to the originalcomplaint even if the plaintiff alleges a new legal theory or cause of action, so long asthe amended complaint is based on the same general set of facts.” (Hutcheson v. TheSuperior Court (2002), 74 Cal.App.5th 932, 940.) Here the original complaint which wastimely filed and the FAC allege a nearly identical set of facts, causation, and injury.Accordingly, Defendant’s statute of limitations argument is meritless.Accordingly, the demurrer as to the second cause of action for receipt of stolenproperty is overruled. C. FraudThe FAC alleges a cause of action for fraud against Dufresne and the Estate but notagainst the Moving Defendants. Accordingly, the demurrer to this cause of action ismoot as to the Moving Defendants. D. Private NuisanceA private nuisance includes “[a]nything which is injurious to health . . . or is indecent oroffensive to the senses, or an obstruction to the free use of property, so as to interferewith the comfortable enjoyment of life or property.” (Civ. Code, § 3479.)”GHOC alleges it owns the Dock and that Cattaneo purposefully installed, maintained,and positioned structures on Tulloch Reservoir to intentionally block GHOC’s access tothe new dock. The allegation that Cattaneo obstructed GHOC’s access to the new dockand therefore the use and enjoyment of the dock is the type of physical interferencewith land use that “constitutes the most obvious and common type of nuisance.”(Rancho Viejo v. Tres Amigos Viejos (2002), 100 Cal.App.4th 550, 561 [citing 11 Witkin,Summar of Cal. Law (9th ed. 1990) Equity, § 126, p. 807.)Moving Defendants argue that the FAC fails to state a claim for private nuisancebecause there is no allegation that Cattaneo owns the neighboring property where theobstructions apparently were placed. However, Moving Defendants fail to cite any legalauthority that would require GHOC to allege Cattaneo owns the neighboring land inorder to make claim for private nuisance. Moving Defendants also refer to photographsthat show the obstructions are small and therefore could not be a nuisance. Referenceto matters outside the pleadings, unless subject to judicial notice, is not proper at thedemurrer stage. (Kanter v. Reed (2023), 92 Cal.App.5th 191, 203.)GHOC has stated a cause of action for private nuisance and accordingly the demurrerto this cause of action is overruled. E. Motion To Strike Punitive DamagesPunitive damages are recoverable where a plaintiff proves “by clear and convincingevidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code,§ 3294.) Relevant to this case, “malice” means conduct which is intended by thedefendant to cause injury to the plaintiff or despicable conduct which is carried on by thedefendant with a willful and conscious disregard of rights or safety of others. (Ibid.)“Oppression” means conduct that subjects a person to “cruel and unjust hardship inconscious disregard of that persons’ rights.” (Civ. Code. §3294(c)(2).)The proper standard for a motion to strike punitive damages is whether plaintiff hasalleged “ultimate facts” showing an entitlement to exemplary damages. (Clauson v.Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Here, the FAC states that Cattaneoand Robinson willfully and with malice stole the Property and refused to return it toGHOC. The FAC further alleges that Cattaneo willfully and with malice intentionallyblocked GHOC’s access to its new dock.The FAC’s allegations have simply pleaded a claim for punitive damages in thelanguage of the statute authorizing punitive damages. While this is not objectionablewhen sufficient facts are alleged to support the allegation, here the FAC lacks ultimatefacts showing a punitive damages claim. (See Perkins v. Superior Court (1981) 117Cal.App.3d 1, 6 [citation omitted].)Moving Defendants’ motion to strike reference to punitive damages is granted, with20 (twenty) days leave to amend. F. Motion to Strike Reference to “Time and Money Spent”Moving Defendants move to strike reference to “time and money spent” as part of thereceipt of stolen property claim. (FAC ¶ 43.) Cal. Civil Code section 3336 allows forcompensation for time and money spent in pursuit of converted property. In the prayerfor relief, the FAC is clear that compensation for “time and money spent” is related tothe conversion claim alone.The motion to strike reference to “time and money spent” in Paragraph 43 isdenied.IV. Summary of rulingsThe demurrer is overruled as to causes of action 1, 2, and 4. It is moot as to causeof action 3. The motion to strike punitive damages is granted, with leave toamend. The motion to strike Paragraph 43 is denied.The Clerk shall provide notice of the Ruling forthwith. Plaintiff to prepare a formal Orderin conformity with these rulings pursuant to CRC 3.1312.. FORD v GREENHORN GOLF, LLC.

Ruling

THE COLONY AT CALIFORNIA OAKS HOMEOWNERS vs MAJESTIC ASSET MANAGEMENT LLC

Jul 26, 2024 |MCC2000132

THE COLONY ATCALIFORNIA OAKSMCC2000132 HOMEOWNERS vs Motion to Amend JudgmentMAJESTIC ASSETMANAGEMENT LLCTentative Ruling:This matter was originally scheduled for hearing on July 8, 2024, at which time the Court informedthe parties that the Court did not have the chance to post a tentative decision. The Courtcontinued the hearing to July 26, 2024. No further documents in support of, in opposition to, themotion have been filed.This is fraudulent conveyance action. Plaintiff The Colony at California Oaks HomeownersAssociation (“Association” or “Plaintiff”) alleges that Majestic Asset Management, LLC (“Majestic”)is and has been the owner of a golf course within the Association gated community since 2007.Defendants Hai Huang and Jen Huang (the “Huangs”) are alleged to be the alter ego of Majestic(collectively “Defendants”). In 2015, a judgment was entered in a prior action between the parties,Majestic Asset Management v. Pappas, Case No. RIC 1213939 (“Prior Action”), in favor of theAssociation and against Majestic for declaratory relief, breach of contract, permanent injunction,monetary damages, attorney fees and costs in the total sum of $583,323.20. The Court alsodetermined the Association is entitled to the remedy of foreclosure pursuant to a 2007Performance Deed of Trust, but the Court deferred ordering foreclosure at that time and insteadentered a permanent injunction requiring Majestic to maintain the golf course property incompliance with maintenance standards, and retained jurisdiction to enforce the judgment toorder foreclosure if Majestic did not comply. On September 25, 2023, the Court amended thejudgment in the Prior Action, ordering the foreclosure of the golf course property pursuant to theHOA Deed.Plaintiff alleges that Defendants encumbered the golf course property by recording a sham Deedof Trust in August 2019 in favor of defendant Tso Jen Chu in the amount of $3,468,012 (“ChuDeed”) so as to evade liability under the judgment in the Prior Action. The operative SecondAmended Complaint alleges: 1) fraudulent conveyance 2) fraud; and 3) declaratory relief.Following a bench trial in September 2023, this Court issued a Final Statement of Decision onDecember 14, 2023 in favor of the Association and against Majestic, finding that the Chu Deed isbased on fraud and therefore void.Plaintiff now moves to amend the judgment 1) deeming non-party Andrew Huang an alter ego ofMajestic and the Huangs; 2) voiding the October 11, 2023 transfer of the Huangs’ residencelocated at 3000 Windmill Drive in Diamond Bar to their son Andrew Huang; and 3) enjoining theHuangs from any further transfers of real property held in their name, Andrew Huang, Majestic orWintech Development, Inc. during the pendency of this litigation without a court order.Defendants oppose, arguing that there is no judgment to be amended or enforced, Andrew Huangis not a party to this litigation nor an alter ego of any of the defendants, the proposed amendmentviolates Andrew Huang’s due process rights, and there is no evidence of a fraudulent transfer orconduct to justify enjoining future transfers.In the Reply, Plaintiff argues that the timing of the transfer and the Huangs’ prior conduct suggeststhe conveyance was fraudulent in their latest attempt to prevent the Association from enforcingits rights.Analysis:Pursuant to CCP § 187, a trial court may use “all the means necessary” to carry its jurisdictioninto effect, even if those processes are not set out in the code.” (McClellan v. Northridge ParkTownhome Owners Ass’n (2001) 89 Cal.App.4th 746, 752.) This statute has been interpreted togive a trial court the jurisdiction to modify a judgment to add additional judgment debtors. (Id. at752-753.) This includes amending a judgment against a corporation to add a nonparty alter egoas a judgment debtor. (Rubio v. CIA Wheel Group (2021) 63 Cal.App.5th 82, 102-103; Greenspanv. LADT, LLC (2010) 191 Cal.App.4th 486, 508.) The amendment does not add a new defendant;it merely sets forth the true name of the real defendant. (Rubio v. CIA Wheel Group, supra, 63Cal.App.5th at 101.)The amendment lies only if the nonparty alter ego controlled the underlying litigation and wasvirtually represented. Absent such control, the alter ego is a true nonparty. (Minton v. Caveney(1961) 56 Cal.2d 576, 581; Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conf. Center Bd.(1996) 41 Cal.App.4th 1551, 1555.) The judgment creditor must establish by a preponderance ofthe evidence that the alter ego controlled the litigation. (Wollersheim v. Church of Scientology Int’l(1999) 69 Cal.App.4th 1012, 1017.)Control has been shown where the nonparty alter ego hired counsel to represent the corporation,was the person with whom the corporate defendant’s counsel primarily dealt, was kept fullyinformed of the suit’s progress, was familiar with all the issues, and helped draft documents forthe litigation. (See Alexander v. Abbey of the Chimes (1980) 104 Cal.App.3d 39, 46.) But controldoes not exist where the alter ego only supplies funds for the prosecution or defense, appears asa witness or cooperates without exerting influence over the litigation. (Minton v. Cavaney, supra,56 Cal.2d at 581; see also Oyakawa v. Gillett (1992) 8 Cal.App.4th 628, 631 (wife, who was notnamed as a defendant and had no control over the litigation, could not be added to the judgmentagainst her husband despite the fact that community property was liable for the debt incurredduring marriage).)There must be such “unity of interest” between the alter ego and the judgment debtor as to ensurethat the alter ego’s interests were represented in the underlying litigation. (JPV I L.P. v. Koetting(2023) 88 Cal.App.5th 172, 194.) To determine whether there is sufficient “unity of interest” andownership, the court considers factors such as the commingling of funds and assets, identicalequitable ownership, use of the same offices and employees, use of one as a mere shell for theother, inadequate capitalization, disregard of corporate formalities, and identical directors andofficers. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538-539.)Preliminarily, this motion is premature because a judgment has not yet been entered in this action.Though the Court issued a Final Statement of Decision, no judgment has been entered for whichan “amendment” would be appropriate. Moreover, Plaintiff failed to produce any evidencewhatsoever that Andrew Huang controlled this litigation and was virtually represented. Indeed, hewas not named as a defendant and there is no evidence Andrew Huang even participated inanyway at trial or during the pendency of this action. There is also no evidence that Andrew Huangwas even a shareholder, officer or director of Majestic, or any facts establishing “unity of interest”or ownership of Majestic.The only evidence Plaintiff produced in support of this motion are documents that show theHuangs transferred title to their residence to Andrew Huang, their son. (Declaration of Joseph A.Sammartino, ¶¶ 4-8, Exs. 1-4.) These facts do not show Andrew Huang is the alter ego ofMajestic. Moreover, any purported fraudulent conveyance to Andrew Huang must be pleaded andproved by Plaintiff by filing a new lawsuit. The Court has no authority to amend a judgment to ruleon a claim (i.e., fraudulent conveyance of the Huangs’ residence) that was never even assertedin Plaintiff’s complaint. Furthermore, just because the court determined Majestic was the alter egoof the Huangs in the Prior Action does not show Majestic is also the alter ego of Andrew Huang.Plaintiff’s arguments are not well taken.The Motion to Amend the Judgment is denied.

Ruling

Hull, et al. vs. The Cadle Company, et al.

Jul 27, 2024 |22CV-0200159

Ruling

JO ELLEN GREEN KAISER VS. THELMA PINTOR ET AL

Jul 24, 2024 |CGC24613077

Real Property/Housing Court Law and Motion Calendar for July 24, 2024 line 5. DEFENDANT PAUL FRENKIEL, TIFFANY PINTOR DEMURRER TO COMPLAINT is SUSTAINED with leave to amend as Plaintiff's complaint is uncertain. Plaintiff shall allege the scope of encroachment and the starting date of the encroachment (specifically before or after Plaintiff's house was torn down). Demurrer is otherwise overruled. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

Ruling

Joshua Delage et al. vs Mark Alan Wall et al.

Jul 26, 2024 |STK-CV-URP-2023-0012309

On the court’s own motion, the Plaintiff's (1) Motion to Compel Further Responses to Form Interrogatories and Sanctions and (2) Motion to Compel Further Responses to Requests for Admissions are CONTINUED to August 1, 2024 at 9:00 am in Dept. 10B. No further briefing allowed. Blanca A. Bañuelos Judge of the Superior Court of California

Ruling

MIA CORDES, ET AL. VS ROYAL GARDEN APARTMENTS, INC.

Jul 26, 2024 |23BBCV00663

Case Number: 23BBCV00663 Hearing Date: July 26, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B michael green, et al., Plaintiffs, v. royal garden apartments inc., Defendant. Case No.: 23BBCV00663 Hearing Date: July 26, 2024 [TENTATIVE] order RE: motion to compel attendance; and motion seeking a protective order BACKGROUND A. Allegations Plaintiffs Michael Green, Mia Cordes, Delia Reed, Zarinah Reed, and Jimmie Henry (Plaintiffs) allege that they reside at 6705 Riverton Avenue, North Hollywood, CA 91606 in various units. Michael Green and Mia Cordes reside in Apartment 13, Jimmie Henry resides in Apartment C1, and Delia Reed and Zarinah Reed reside in Apartment 21. Defendant Royal Garden Apartments Inc. (Defendant) is alleged to be the owner, agent, and manager of the 6705 Riverton Avenue property. Plaintiffs allege that the premises have an infestation of roaches and rodents, lack adequate gas facilities, and lack smoke detectors. They allege that the premises are uninhabitable. The complaint, filed March 23, 2023, alleges causes of action for: (1) breach of warranty of habitability; (2) breach of covenant of quiet enjoyment; (3) nuisance; (4) negligence (Civ. Code, §§ 1714(a), 3333); (5) premises liability (negligence per se); (6) unfair business practice and unfair competition; and (7) IIED. On August 16, 2023, Plaintiffs named J.K. Residential Services, Inc. as Doe 1. B. Motions on Calendar On June 12, 2024, Defendant filed a motion to compel the attendance, uninterrupted and without coaching testimony and the production of documents, of Plaintiff Michael Green. On June 28, 2024, Plaintiff filed an opposition brief. On July 2, 2024, Defendant filed a reply brief. On June 12, 2024, Defendant filed a motion for protective order preventing Plaintiffs counsel from coaching the deponent and speaking on the cell phone during the deposition or, alternatively, appointing a discovery referee at the expense of Plaintiff. On June 26, 2024, Plaintiff filed an opposition brief. On June 27, 2024, Defendant filed a reply brief. DISCUSSION RE MOTION TO COMPEL DEPOSITION Defendant moves to compel the deposition of Mr. Green, uninterrupted and without coaching testimony, and for the production of documents. Defendant argues that it has attempted to take Mr. Greens deposition on multiple occasions, only to be notified about last-minute changes to time, location, and participation of Mr. Green and Plaintiffs counsel. Defendant argues that Plaintiffs did not object to Defendants deposition notices and that Plaintiffs have not produced documents. The parties met and conferred regarding the deposition of Mr. Green set for May 14, 2024. On May 9, 2024, Plaintiffs counsel confirmed the deposition and stated that the time should be at 12:00 p.m. as Mr. Green no longer lived in California but would be in town that day. (Mot., Ex. C.) On May 13, 2024, Defendant accommodated the request by contacting the court reporter and moving the start time. (Mot., Ex. C.) That same day, Plaintiffs counsel emailed stating that Mr. Green would not be available in person, but could appear remotely as he lived in Las Vegas, Nevada. (Mot., Exs. E-G.) Defense counsel responded that the last-minute changes were unacceptable and that the deposition would be going forward at the noticed time and location. (Mot., Ex. G.) On May 14, 2024 at 10:00 a.m., the deposition went forward, but Plaintiffs counsel and Mr. Green did not appear, such that a notice of nonappearance was taken. (Mot., Ex. I.) Plaintiffs argue that they informed defense counsel that Mr. Green lived in Nevada and would be available to appear for his deposition remotely or in Las Vegas. They argue that despite attempts to set another deposition date or set a remote deposition, Defendant has refused to meet and confer regarding Mr. Greens deposition. Prior to the deposition going forward on May 14, 2024, there appears to have been miscommunication between the parties regarding Mr. Greens whereabouts or his residence. On May 9, 2024, Plaintiffs counsel sought to push back the deposition time, stating that Mr. Green would be in town and available to attend his deposition. On May 13, 2024, Plaintiffs counsel informed defense counsel that Mr. Green did not live in California and would now be made available for a remote deposition. It is not clear when Plaintiffs counsel became aware of Mr. Greens residency and whether this information could have been disclosed earlier. However, based on the papers provided by the parties, it appears that Plaintiffs counsel disclosed Mr. Greens Nevada address on May 13, 2024one day before the noticed deposition. The parties do not dispute that Defendant may take the deposition of Mr. Green. Rather, Plaintiffs counsel has offered to make Mr. Green available remotely or in person in Las Vegas, although notice of Mr. Greens new residency was not provided until only a day prior to the noticed deposition date. Further, Defendant knew that Mr. Green and Plaintiffs counsel were not able to make the deposition on May 14, 2024 at 10:00 a.m., but proceeded to conduct the deposition for that time. (In the opposition brief, Plaintiffs argue that although they gave notice of Mr. Greens non-residency, defense counsel failed to grant the accommodation for a slight change of time to allow Mr. Green to travel to California. [Opp. at p.5.]. However, this argument appears to contradict the emails wherein Plaintiffs counsel stated that Mr. Green would be available remotely for his deposition or that Defendant could conduct the deposition in Las Vegas.) At this time, the Court will grant the motion to compel Mr. Greens deposition as neither party disputes that Mr. Greens deposition should go forward. However, the parties should meet and confer regarding how the deposition will be conductedin person or remotely. Defendant should re-notice Mr. Greens deposition, taking into consideration his non-residency in California. (CCP § 2025.250(a) [Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.].) Further, as no documents were produced and the request for documents was not objected to nor addressed in the opposition brief, Mr. Green is ordered to produce the documents requested prior to the deposition. Defendant seeks $2,589.46 in sanctions against Mr. Green and his counsel, which accounts for $1,572.50 in attorneys fees and $1,016.85 for the cost of the non-appearance. (Flesch Decl., ¶¶19-23.) Plaintiffs seek $3,200 in sanctions against Defendant for the time spent by counsel to oppose the motion. (Ekpenisi Decl., ¶21.) At this time, the Court declines to award sanctions on this motion. The parties should have engaged in further meet and confer efforts once they realized that the May 14, 2024 deposition would not be going forward as discussed in their emails and based on Mr. Greens updated residency. While the process of scheduling the deposition may have been frustrating for both counsel, both counsel are tasked with acting with civility towards one another in scheduling a deposition. (See LASC Local Rule, Appendix 3.A. Guidelines for Civility in Litigation at (e)(2) [In scheduling depositions, reasonable consideration should be given to accommodating schedules or opposing counsel and of the deponent, where it is possible to do so without prejudicing the clients rights.].) If further issues arise regarding the inability to conduct Mr. Greens deposition or Mr. Greens deposition was unnecessarily delayed, the Court will consider imposing sanctions at that time. DISCUSSION RE MOTION FOR PROTECTIVE ORDER Defendant moves for a protective order so that it can depose Plaintiffs, uninterrupted and without coaching by Mr. Ekpenisi. CCP § 2025.420 states in relevant part: (a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: & (5) That the deposition be taken only on certain specified terms and conditions. (CCP § 2025.420.) Defendant argues that Plaintiffs counsel Macauley Ekpenisi has a history of disruptive conduct during depositions and last-minute requests prior to depositions going forward. With respect to Plaintiff Mia Cordes deposition scheduled for May 22, 2024 at 10:00 a.m., Mr. Ekpenisi requested on May 20, 2024 that the deposition start at 11:30 a.m. and be conducted remotely. On May 21, 2024, Mr. Ekpenisi asked that Ms. Cordes deposition be conducted at 2:00 p.m., as he had 3 different unlawful detainer actions in Pasadena courthouse on May 22, 2024. Defendant denied these requests and Plaintiffs counsel confirmed that the deposition would go forward. Defendant states that Ms. Cordes deposition began on May 22, 2024 at around 10:00 a.m., but during the deposition, Mr. Ekpenisi got on his cell phone, began talking about an unrelated matter with a federal court judge, and left the deposition. (Mot., Ex. J.) Upon his return, Defendant argues that Mr. Ekpenisi began coaching Ms. Cordes before she had an opportunity to answer a question (or began answering deposition questions himself), and when instructed not to coach Ms. Cordes, Mr. Ekpenisi began pointing to documents to inform Ms. Cordes how to respond. (Mot., Ex. K, Ex. L.) Defendant argues that similar conduct occurred in Plaintiffs Zarinah and Delia Reeds depositions as Plaintiffs counsel showed up 45 minutes late to the depositions, made phone calls during the depositions, and coached the witnesses. (Mot., Ex. M [Zarinah Reed Depo. re start time of deposition]; Exs. N and O [Mr. Ekpenisi answering questions on Zarinah Reeds behalf]; Ex. P [Mr. Ekpenisi answering questions on Delia Reeds behalf during her deposition].) Defendant also refers to the motion to compel Mr. Greens deposition to argue that Mr. Ekpenisi has a history of making last-minute requests for depositions. In opposition, Plaintiffs argue that they requested accommodations for their counsels scheduling conflicts, but Defendant refused to make such accommodations before the depositions or during the depositions (when Mr. Ekpenisi asked for a short break). However, Plaintiffs have not shown why they did not object to deposition notices based on scheduling conflicts or seek accommodations earlier. Based on the ordinary business of the courts, advance notice of hearings is given to litigants and their counsel regarding hearing dates and times. Further, the deposition transcript shows that Mr. Ekpenisi disrupted his own clients answer by seeking a short break for himself to handle a federal matter. (See Mot., Ex. J at pp.12-13.) Plaintiffs argue that the motion is not accompanied by a meet and confer declaration, such that this motion is improper. However, based on counsels interactions over email and at the deposition, it appears that further meet and confer efforts on this particular topic would have been ineffective. For example, during Ms. Cordes deposition, when defense counsel asked Mr. Ekpenisi whether he understood that when defense counsel was asking Ms. Cordes a question, he was expecting an answer from her, Mr. Ekpenisi stated: No, its not. (Mot., Ex. K at p.20.) Based on the deposition record, Mr. Ekpenisi responded to questions on behalf of his clients/the deponents despite being asked repeatedly not to answer or coach the witness. There appears to be a course of conduct regarding Mr. Ekpenisi making last-minute requests for accommodations of depositions (to move the times or to make them remote), appearing to the depositions late, interrupting defense counsel or the witness, and answer on behalf of his clients or coaching them on how to respond to deposition questions. For these reasons, the motion for a protective order is granted such that the Court will order Mr. Ekpenisi to attend depositions in a timely matter and allow the depositions of his clients to go forward without phone call interruptions (i.e., other court hearings and unrelated matters) and without coaching by Mr. Ekpenisi. Mr. Ekpenisi may still make objections on the record during a deposition, but may not instruct his clients on how to answer or answer deposition questions on their behalf except on grounds of privilege. In the notice of motion, Defendant seeks $3,211 against Plaintiffs counsel, while the conclusion in the memorandum of points and authorities seeks $3,630 against Plaintiffs. Defense counsel Daniel G. Fleschs declaration seeks $3,211 in sanctions (= 10.5 hours x $185/hour, plus $1,268.60 in costs for the deposition of Ms. Cordes). (Flesch Decl., ¶¶27-31.) In opposition, Plaintiffs seek $3,600 in sanctions. The Court will award sanctions to Defendant in the reasonable sum of $2,500 for counsels time spent on this matter, plus $1,268.60 for Ms. Cordes suspended deposition. CONCLUSION AND ORDER Defendant Royal Garden Apartments, Inc.s motion to compel the deposition of Plaintiff Michael Green is granted. The parties are ordered to meet and confer regarding a mutually agreeable date and time to conduct the deposition and whether the deposition will be proceeding remotely or in person. Following meet and confer efforts, Defendant is ordered to re-notice Plaintiff Michael Greens deposition on the mutually agreeable date and time or, if the parties were unable to agree upon a date, within 60 days of this order. Plaintiff is ordered to produce documents responsive to the request for documents prior to the deposition date. No sanctions will be awarded on this motion. Defendant Royal Garden Apartments, Inc.s motion for a protective order is granted such that the Court will order Macauley Ekpenisi to attend depositions in a timely matter and allow the depositions of his clients to go forward without phone call interruptions (i.e., other court hearings and unrelated matters) and without coaching by Mr. Ekpenisi. Mr. Ekpenisi may still make objections on the record during a deposition, but may not instruct his clients on how to answer or answer deposition questions on their behalf except on grounds of privilege. Plaintiffs counsel is ordered to pay monetary sanctions in the amount of $3,768.60 to Defendant, by and through counsel, within 20 days of notice of this order. Defendant shall provide notice of this order. DATED: July 26, 2024 ___________________________ John Kralik Judge of the Superior Court

Ruling

Ruth Levinson vs. Cyntha Ho

Jul 18, 2024 |C23-02420

C23-02420CASE NAME: RUTH LEVINSON VS. CYNTHIA HOHEARING ON DEMURRER TO: 1ST AMENDED COMPLAINTFILED BY: KOBLICK , JAMES*TENTATIVE RULING:*Defendants James Koblick and Jennifer Knoop Koblick demur to most of the counts in plaintiff’s FirstAmended Complaint. Their formal demurrer misnumbers the FAC’s causes of action, but their brief ismore careful. They do not demur to plaintiff’s first cause of action for financial elder abuse. Theyargue their demurrers to the second cause of action (fraud), third cause of action (negligent andintentional infliction of emotional distress), and fifth cause of action (slander of title). They say they’redemurring also to the fourth cause of action (cancellation of written instrument) and sixth cause ofaction (quiet title), but their brief contains no separate argument as to those counts.The demurrer is overruled. The Koblicks are given to August 9 to file and serve their answer.The FAC’s Allegations SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 12 JUDICIAL OFFICER: CHARLES S TREAT HEARING DATE: 07/18/2024All of plaintiff’s counts arise from the same narrative of allegations. Plaintiff alleges that she is elderly,dependent, and vulnerable. She alleges that during the events in question she suffered from memoryloss, fatigue, immobility, depression, and social isolation, and that she was prone to neglect her ownaffairs (for example, failing to open her mail for weeks at a time). She alleges that the Koblicksingratiated themselves with plaintiff, representing themselves as seeking to help vulnerable elderpeople. In league with co-defendant Ho (who has answered), they hatched an intentional scheme tomanufacture a loan default and foreclosure so as to steal the equity in plaintiff’s home, takingadvantage of her impaired state and her trust in them. The Koblicks persuaded plaintiff to take out aloan secured on her home, even though she had no need for a loan or extra cash. They allegedlyassured her that they would not foreclose. When plaintiff fell modestly behind in her payments, theKoblicks recorded a notice of default, and then prevented plaintiff from realizing she faced a defaultby actively stealing her mail. They then arranged a foreclosure sale, in which their alleged co-conspirator Ho purchased the property for far below its actual market value. She alleges she did notunderstand any of this was going on until she got a check for the excess-value recovery from theforeclosure sale.Second Cause of Action (Fraud in the Inducement)The Koblicks raise two arguments in demurrer to plaintiff’s fraud count. They argue that theallegations are insufficiently detailed, and that the FAC shows that the fraud count is barred bylimitations. The first argument largely blends into the second, however, as the facts that the Koblickssay are too vaguely alleged are (mostly) those relating to the dates on which the alleged fraudulentacts occurred.Taking the latter point first, therefore: The statute of limitations for a fraud claim is three years. Codeof Civil Procedure § 338(d). However, “[t]he cause of action in that case is not deemed to haveaccrued until the discovery, by the aggrieved party, of the facts constituting the fraud….” (Id.) Thecomplaint in this case was filed on September 25, 2023. Thus, the limitations cutoff was September25, 2020.“A demurrer based on a statute of limitations will not lie where the action may be, but is notnecessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised bydemurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is notenough that the complaint shows that the action may be barred." (Geneva Towers Ltd. Partnership v.San Francisco (2003) 29 Cal.4th 769, 781, quoting Marshall v. Gibson, Dunn & Crutcher (1995) 37Cal.App.4th 1397, 1403.) And where a demurrer flunks that test, the demurring defendant cannotsave the day by complaining that the plaintiff’s complaint fails to identify the dates at issuesufficiently.The demurrer’s limitations argument keys on the allegation that the fraudulent loan occurred inFebruary 2019. But that is hardly the entirety of the alleged fraudulent scheme, which (as defendantsacknowledge) is alleged to have occurred over the period from February 2019 to April 2023. In SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 12 JUDICIAL OFFICER: CHARLES S TREAT HEARING DATE: 07/18/2024particular, the foreclosure – the principal form of harm alleged to have resulted from the fraud –occurred in 2023; as did the Koblicks’ alleged intentional concealment from plaintiff of the fact of herdelinquency, default, and pending foreclosure (for example, by actually stealing plaintiff’s mail).Moreover, even assuming (as the demurrer does) that the only “fraud” was the original 2019 loan,defendants entirely fail to come to grips with the discovery theory of accrual dictated in § 338(d).They make no argument that the FAC proves that plaintiff must have discovered the fraudulent natureof the loan by no later than September 2020, and the FAC alleges it wasn’t discovered until after theforeclosure sale.Defendants try to combine their limitations argument with one about insufficient specificity,criticizing the FAC for not being specific enough about dates. For example, defendants argue thatalthough they are alleged to have stolen plaintiff’s mail sometime in 2023, there is no specification ofwhen in 2023. They offer no explanation as to how plaintiff is supposed to know or learn the specificdates on which defendants surreptitiously purloined the default notice. But that aside, who cares (fordemurrer purposes) about allegations of specific dates in this connection? All one needs to knowabout the mail theft, for purposes of liability, is that the mail was allegedly stolen in order to concealthe default-foreclosure problem from plaintiff. And all one needs to know about the mail theft, forpurposes of limitations, is that it occurred after September 2020.As for specificity: “Each element in a cause of action for fraud or negligent misrepresentation must befactually and specifically alleged. The policy of liberal construction of pleadings is not generallyinvoked to sustain a misrepresentation pleading defective in any material respect.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519, internal citation omitted.) “[A] plaintiff must plead factswhich show how, when, where, to whom, and by what means the representations were made.”(Wald v. TruSpeed Motorcars, LLC (2010) 184 Cal.App.4th 378, 393-94, citations omitted; see alsoTarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)Defendants attempt no serious argument otherwise as to how the fraud allegations are insufficientlydetailed to withstand demurrer. The only point they raise in any detail is the assertion that plaintiff’sallegations of justifiable reliance are “hollow”. But their discussion of the point consists of recountinghow reliance allegations in other published cases have fallen short – with no articulated argumentthat the allegations in this case are similarly deficient. The Court is satisfied with the level of specificfactual allegations supporting the fraud allegations in the FAC.Fourth and Sixth Causes of ActionDefendants formally demur to these two causes of action, but their brief contains no separatediscussion of them. Apparently the theory is that these claims rest on fraud, and hence they fail withthe second cause of action. To the contrary, they survive just as the second cause of action does.Third Cause of Action (Negligent and Intentional Emotional Distress) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 12 JUDICIAL OFFICER: CHARLES S TREAT HEARING DATE: 07/18/2024Plaintiff oddly combines, in a single count, assertions of both negligent and intentional infliction ofemotional distress. This is improper; the two theories are quite distinct substantively, resting ondifferent requirements of factual allegations – indeed, one might say, even mutually inconsistent setsof alleged facts.Defendants are correct in arguing that plaintiff alleges no viable theory of negligent infliction. AsPlaintiff acknowledges, NIED is not an independent tort but, instead, a remedy available for selectnegligence-based claims, generally on a so-called “bystander” theory – such as witnessing your ownchild being hit by a negligently driven car. (See, e.g., Burgess v Superior Court (1992) 2 Cal.4th 1064,1071-72; Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) Plaintiff alleges nothing remotely of that kind.And indeed, to the contrary, plaintiff’s overall theory of this case in the FAC is the opposite of a“negligence” theory: She contends that defendants’ conduct was an intentional, directed, andknowingly predatory scheme to take her home from her. There is no room in the FAC for a suggestionthat any of this alleged conduct was committed “negligently”, by inadvertence or carelessness, ratherthan by overt wrongful intention. If defendants defrauded plaintiff and stole her home (as plaintiffcontends), they did so because that was their plan and their objective, not because they weren’tpaying enough attention.However, a demurrer may be sustained only if it shows the invalidity of an entire cause of action;there is no such thing as a demurrer to only part of a cause of action. (E.g., Fremont Indem. Co. v.Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) If plaintiff’s third count adequately alleges acause of action for intentional infliction, then the defective invocation of a “negligent infliction” claimcan be disregarded as non-actionable surplusage.As for the IIED theory, defendants again try to piggyback on their arguments why the fraud allegationsare insufficient. But they make only a cursory and ineffective argument otherwise as to theinsufficiency of this count. Granted, it may be fairly assumed from plaintiff’s allegations that theKobricks’ purpose and goal in their asserted wrongdoing were not to cause emotional distress toplaintiff as such, but rather to secure the financial gain of fleecing her of the equity in her home. But“a claim for intentional infliction of emotional distress (IIED) can arise from reckless disregard of theprobability that [decedent] would suffer emotional distress, knowing that [she] was present when theconduct occurred”. (E.g., Bock v. Hansen (2014) 225 Cal.App.4th 215, 235; see CACI 1600.)Fifth Cause of Action (Slander of Title)Defendants argue that recordation of foreclosure documents on title cannot form the basis of a causeof action for slander of title, because such acts and documents are privileged under Civil Code §§ 47and 2924 pursuant to Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331. The holding in Schepsupports finding a qualified privilege under § 47(c) with respect to recordation of foreclosuredocuments, where there is no malice. (12 Cal.App.5th at 1338-39.) As discussed in Schep, although§ 2924(d)(1) states that acts thereunder are subject to § 47 privilege, it does not specify a subpart of§ 47 or the type of privilege that applies. (Id. at 1338.) Contrary to Defendants’ argument, Schep SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 12 JUDICIAL OFFICER: CHARLES S TREAT HEARING DATE: 07/18/2024specifically states that it is not deciding that recordation of foreclosure documents is subject to thelitigation privilege. (Ibid.)Schep provides that application of a privilege under § 47 depends on the allegations pertaining tointent behind Defendants’ acts and representations as provided in subpart (c). Here, the Court isholding that plaintiff has adequately alleged that the foreclosure, and hence the recordation of theforeclosure documents, were brought about by fraud. For pleading purposes, that is sufficient tosupport this cause of action against a defense of qualified privilege.

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